Tuesday, July 21, 2020

Liability Immunity and Personal Security—Irreconcilable Ideas?

I wrote in general terms back on June 10 about the “liability shield” that will probably be front and center in the debate over the next COVID-19 Relief Bill. No bill has yet been produced, but everyone is pretty clear about the immunity provisions it will contain. My gut tells me that the most feasible political solution may be a national pandemic program (regrettably, it looks like we may need a plan for future such outbreaks) akin to the National Vaccine Injury Compensation Program. But it is very important to remember that no compromise of this type, or like workers’ compensation, could ever occur without the default liability pressure of the tort regime. And the tort theory for liability is simple: it is not fair that those who benefit most from productive activity should pay an inadequate share of costs incurred by victims harmed by the activity. This is certainly true where those conducting the activity are negligent--in fact if harm can be avoided by reasonable conduct it should be. But under an “enterprise theory” of tort, it is also true when primary “activity beneficiaries” are non-negligent, if those beneficiaries are the moving, or initiating agents of the activity, and if the activity is sufficiently large in scope or scale. When the characteristic activity of a business involves a lot of “big stuff moving around,” we know darned well that we will have victims. Those conducting activity actuarially/statistically known to create risks of harm, even when all due care to prevent harm is exercised, should not be able to escape compensation for the harm caused simply because they (fortuitously?) failed to foresee a particular victim in a particular accident. This is a common justification for application of strict, or non fault-based, liability.

In any event, I think that strict liability, negligence, and administrative schemes like workers’ compensation, each recognize a core fundamental right of all persons to safety and security (remedies for harm are important, too, but as Greg Keating has forcefully argued the core right is avoidance of harm, and post-hoc remedies for harm are always second best). Moreover, I—following among others John Stuart Mill—believe security to be the highest of absolute rights. In 1863, Mill wrote, in Chapter 5 of his influential work Utilitarianism,

To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of. If the objector goes on to ask, why it ought? I can give him no other reason than general utility. If that expression does not seem to convey a sufficient feeling of the strength of the obligation, nor to account for the peculiar energy of the feeling, it is because there goes to the composition of the sentiment, not a rational only, but also an animal element, the thirst for retaliation; and this thirst derives its intensity, as well as its moral justification, from the extraordinarily important and impressive kind of utility which is concerned. The interest involved is that of security, to every one’s feelings the most vital of all interests. All other earthly benefits are needed by one person, not needed by another; and many of them can, if necessary, be cheerfully foregone, or replaced by something else; but security no human being can possibly do without on it we depend for all our immunity from evil, and for the whole value of all and every good, beyond the passing moment; since nothing but the gratification of the instant could be of any worth to us, if we could be deprived of anything the next instant by whoever was momentarily stronger than ourselves. Now this most indispensable of all necessaries, after physical nutriment, cannot be had, unless the machinery for providing it is kept unintermittedly [without interruption] in active play. Our notion, therefore, of the claim we have on our fellow-creatures to join in making safe for us the very groundwork of our existence, gathers feelings around it so much more intense than those concerned in any of the more common cases of utility, that the difference in degree (as is often the case in psychology) becomes a real difference in kind. The claim assumes that character of absoluteness, that apparent infinity, and incommensurability with all other considerations, which constitute the distinction between the feeling of right and wrong and that of ordinary expediency and inexpediency. [Emphases supplied]

These may be words to remember as the citizenry is herded back to work (assuming there is any work). I cannot imagine the panic that could ensue if people experiencing sharply higher rates of COVID-19 disease resulting from (merely?) negligent business practices realize that all avenues of legal recourse have been cut off because they cannot prove those practices were the product of “recklessness” or “gross negligence.” Simply terrifying.

Michael C. Duff


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